I move amendment No. 1:
In page 3, subsection (1), line 15, to delete "brother, sister, half-brother or half-sister" and substitute "sibling".
I tabled this amendment in the spirit of being helpful to the Minister. I note that the Oxford Dictionary defines a "sibling" as " one of two or more children having one or both parents in common". This might meet the Minister's intention of providing a gender neutral Bill.
Amendments Nos. 1 and 13 propose the substitution of the word "sibling" for the words "brother, sister, half-brother or half-sister" in sections 1 and 4 of the Bill. A similar amendment may have been proposed in a debate on the Bill which led to the Domestic Violence Act, 1996, and was not supported. The word "sibling" lacks legal precision and for that reason is not used in legislation. There is the question, for example, as to whether it comprises half-blood relatives. I am satisfied that the definition of dependant in the Bill makes absolutely clear what is intended. Where definitions are concerned it is better to be precise and leave no room for doubt. In the circumstances I regret I am unable to accept the amendments.
Amendment No. 2 is in the name of the Minister. Amendment No. 3 is an alternative and amendment No. 14 is related. Amendment No. 22 is related to amendment No. 3. Amendment No. 15 is an alternative to amendment No. 14. Amendment No. 23 is related to amendment No. 15. We will take amendments Nos. 2, 3, 4, 14, 15, 22 and 23 together by agreement. Agreed.
I move amendment No. 2:
In page 3, subsection (1), line 18, after "granted" to insert "under the Family Law (Divorce) Act, 1996 or ".
I indicated on Second Stage that it was my intention to move an amendment at the appropriate time to provide for the extension of the definition of dependant in part 4 of the Civil Liability Act, 1961 and the Air Navigation and Transport Act, 1936, to include a person whose marriage to the deceased has been dissolved following the granting of a decree of divorce in the State. The Family Law (Divorce) Bill has now been passed and it is appropriate to move amendments Nos. 2 and 14 to provide for divorced persons.
Amendments Nos. 3 and 15 purport to have the same effect. They involve the insertion of new paragraphs but fail to make the necessary consequential amendments to sections 3 and 4 of the Bill. The manner in which my amendments are framed avoids that difficulty. I am assuming that it is not the intention of the Deputy that a spouse who is divorced in the State should be allowed to claim damages for mental distress.
Amendments Nos. 22 and 23 purport to deal with the operative date of Deputy Woods's amendments but they do not achieve the point. However, I am asking the House to accept amendments Nos. 2 and 14 instead which achieve all that is purported to be required by the Deputy in his amendments.
I accept what the Minister has said. My purpose was to do what he mentioned. I did not table consequential amendments because it is easier to leave the Government to do that homework. I was doing it for some time and no one seemed to appreciate the legwork involved so I decided that if the main amendment was accepted, at least in spirit, the consequential amendments would be catered for. I welcome the Minister's amendment.
We are also discussing amendments Nos. 14 and 15. Amendment No. 15 is for the purposes of the Air Navigation and Transport Act, 1936. Amendment No. 23 also relates to the Air Navigation and Transport Act. Amendment No. 22 attempts to copperfasten the situation. I am happy with the Minister's amendments.
Amendment No. 4 is in the name of the Minister. Amendment No. 5 is an alternative. Amendment No. 16 is related to amendment No. 4. Amendment No. 17 is an alternative to amendment No. 16. We will discuss amendments Nos. 4,5,16 and 17 together by agreement. Agreed.
I move amendment No. 4:
In page 3, subsection (1), line 23, to delete "husband and wife" and substitute "husband or wife".
Amendments Nos. 4 and 16 are drafting amendments. They substitute the words "husband or wife" for the words "husband and wife" where they appear in sections 1 and 4. Amendments Nos. 5 and 17 propose the substitution of "a spouse" for "husband and wife" in sections 1 and 4. The words "husband or wife" are used in a similar context in other legislation, for example, the Domestic Violence Act, 1996. They are the proper words to use in the overall context of the paragraphs in question dealing with cohabitants.
The parliamentary draftsman is of the view that the words in the Bill are gender specific and, in the context in which they are used, do not offend current practice in relation to gender proofing of legislation. I am not in favour of amendments Nos. 5 and 17.
I have no disagreement with amendment No. 4. I used the word "spouse" to assist the Minister in neutralising the sections. I have no hang up if the parliamentary draftsman says that he is happy with "husband or wife".
It is only a drafting point.
Amendments Nos. 11 and 12 are related to amendment No. 6 and may be discussed together.
I move amendment No. 6:
In page 3, subsection (2), line 29, to delete "accrued" and substitute "commenced by the issuing of proceedings".
If the amendment is accepted it will affect only a small number of divorcees. It will give them the right to be joined in an action where a death has taken place before the Bill is signed into law but where the action is not commenced until after it is promulgated. It is a small, technical point which would allow the inclusion of a small number of divorcees who might not be covered otherwise. It is harsh to say that if the death occurs today and the Bill is signed into law next week, a foreign divorcee could not be joined in the action when it commences. This amendment would allow them in these particular circumstances.
It is provided in the Bill that sections 1, 2 and 3 shall not have effect in regard to a cause of action that accrued before each of them comes into operation. Amendments Nos. 6, 11 and 12 would provide instead that sections 1, 2 and 3 shall not have effect in regard to a cause of action that commenced by the issuing of proceedings before each of those sections comes into operation. The effect of the amendments is that the changes in the law provided for in those sections would apply to causes of action that accrued before those sections came into operation unless proceedings had already commenced. The three year period of limitations rule or the date of knowledge rule already set out in legislation would presumably apply to sections 1, 2 and 3 as so amended. The amendments would mean that these sections could apply retrospectively instead of applying as provided in the Bill from the date of passing of the Bill. The standard provision in legislation is for it to operate from the date of its passing or from some prescribed date in the future on the basis of provision in the legislation or a ministerial order. It is most unusual for legislation to have retrospective effect, especially where it would affect the rights of persons to sue and the position of those who may be sued.
In cases where, as in the case of this Bill, the amount of compensation that may be awarded is being substantially increased, it could also be argued that it is unfair to those whose actions accrued before the passing of the Bill but who had their claims determined under the previous lower limit. The persons, on the other hand, who under the amendments would be allowed to benefit under the actions which accrued before the passing of the Bill would be relatively advantaged. I understand the intentions behind the amendments but we need to be careful about retrospection of the kind that is provided for in the amendments. I regret, therefore, that I am not in a position to accept the amendments.
The Minister appreciates the point that there will be a small number of people caught in between. Perhaps all that can be done in practice is to ensure the Bill is passed speedily. I am sure the Minister will co-operate.
